Constitution Watch 7-2011

CONSTITUTION WATCH 2011

[3rd December 2011]

Final Preparations for Drafting

The constitution-making process is nearing the point at which the three lead drafters – the expert legal drafters responsible for the actual drafting of the new constitution – will start their task. The drafters’ duty is to capture in appropriate language the instructions given to them by COPAC as to the content of the constitution. To ensure they can get on with their job efficiently and without distraction and interference, they will be working in sequestered conditions [much as a jury would when deciding the verdict in a trial by jury]. It would therefore be improper for anyone, no matter how well-intentioned, to contact the lead drafters in an effort to influence the content of the constitution at this stage. The next opportunity for input by anyone other than those involved in the drafting will be at the Second All Stakeholders Conference. It is hoped that the draft that is produced will be circulated in good time for consideration before this Conference takes place.

Lead Drafters Now Officially Contacted

The Minister of Constitutional and Parliamentary Affairs has now officially contacted and held meetings with the three lead drafters These were agreed on by all parties represented in COPAC as being acceptable because of their known drafting skills and professional impartiality. They are:

Justice Moses Chinhengo – judge of the High Court of Botswana and former judge of the High Court of Zimbabwe

Mr Brian Crozier – former Director of Legal Drafting in the Attorney-General’s Office.

[Note: All three of the lead drafters were members of the drafting committee that prepared the draft constitution produced by the Chidyausiku Commission in 1999. This draft was rejected in the Referendum of February 2000, but the rejection had nothing to do with the quality of the drafting.]

Pre-Drafting Planning Workshops

Before the three lead drafters could be given their instructions, it was necessary for the Select Committee to decide what those instructions should be, i.e., what the Select Committee, having now had the benefit of the views of Zimbabweans as gathered during the outreach process and in submissions to COPAC, wished the content of the constitution to be. COPAC held two workshops to map the way forward, one at Masvingo [31st October-1st November], the other just outside Harare [6th-8th November]. These workshops were attended by all 25 members of COPAC, members of the drafting committee’s technical committee [all the drafting committee’s members apart from the COPAC co-chairpersons] and representatives of the Ministry of Constitutional and Parliamentary Affairs. The COPAC press release ahead of the workshops said the COPAC members would be there “to provide political guidance”, and that the expected outcomes from the workshop were:

“The identification of constitutional issues from the national report [in fact participants used provincial reports, as there seem to be a problem with the narrative component of the national report, with only the statistical component being agreed to by all parties.]

Consensus on constitutional issues to be included in the constitution

Gap filling in the constitutional framework in areas not covered by the field data [Comment: This shows how inadequate was the list of “talking points” taken on the outreach programme – it has been acknowledged that they covered only about 10 percent of what is generally recognised as necessary in a constitution.]

The finalisation of the constitutional framework

The identification of the constitutional principles which will guide the drafting team. These will be guided by the identified constitutional issues and international norms and best practices.

Agreeing on a framework for conflict/dispute resolution.”

After the workshops members of the technical committee met from 14th to 22nd November for further consideration of which issues identified by the workshops should be confirmed for inclusion in the constitution and which left to be dealt with by ordinary legislation. These tasks were completed, as far as agreement was reached, on 22nd November and the resulting report was presented to COPAC on 23rd November and considered at a COPAC meeting on 28th November. Agreement was not reached on 66 issues of varying importance, and these “parked” issues were referred to the Management Committee, which sent them back to COPAC to try and resolve differences. The co-chairs have since managed to reduce the “parked” issues to 15 and may get that number down further before another meeting of the Management Committee on 5th December. What the Management Committee – which includes GPA negotiators – cannot resolve may have to go to the party principals. The death penalty and the number of vice-Presidents have been cited as examples of “parked” issues.

Comment: The fact that there were so many issues that had to be decided at this late stage by the co-chairpersons means that civil society’s worst fears are being fulfilled – there is inordinate influence from the three GPA parties. If so much was going to be decided by so few, it would have been preferable to decide on a panel of proven constitutional experts from both within and outside the country, acceptable to all parties and civil society, at an early stage. In Kenya a complete draft constitution was produced by a small Committee of Experts and it was that draft on which the people were consulted.

The Drafting Committee

The drafting committee is made up as follows:

15 persons with legal and constitutional expertise, 5 nominated by each of the three GPA parties [the names of these members have not yet been officially released]

Senator Chief Khumalo and Advocate Happias Zhou [nominated by the Council of Chiefs – who, like the three GPA parties are represented in Parliament and on COPAC]

The drafting committee, as well as preparing the final material for the lead drafters, will periodically look at what the lead drafters have produced and either accept what is produced or suggest amendments.

Monitoring of the Drafting Stage

There has been no indication that that civil society would be allowed to monitor the drafting stage. ZZZICOMP [ZESN/ZPP/ZLHR Independent Constitution Monitoring Project] has protested this omission, stressing the importance of greater transparency and the need for the outreach reports to be made available and civil society to be allowed to monitor the drafting stage and other subsequent events leading to the Referendum. COPAC’s response is awaited. [Note: ZZZICOMP eventually, after a struggle, got COPAC to agree to letting its observers in to monitor the Thematic Committee stage – the compiling of the reports. As yet there has been no ZZZICOMP report on this stage has been made available to the rest of civil society.]

Concerns about the drafting stage may stem from the fact that when the Chidyausiku Commission’s drafting committee was at work in 1999 there was political interference resulting in the final draft not truly reflecting the instructions originally given to the drafters.

It is difficult to conceive how the professional work of the three lead drafters could be monitored full-time without unduly interfering with their work. They will obviously not always work in committee. How does one unobtrusively monitor what an individual drafter is doing on his or her laptop computer? Even when the lead drafters meet in committee, sitting in on meetings would probably be obtrusive and unproductive. If by monitoring is meant the monitors checking at regular intervals that the drafters’ product is in conformity with their instructions, that seems inappropriate – and something that civil society should more appropriately deal with in the run-up to and during the Second All-Stakeholders Conference.

Any monitoring would be difficult as long as the reports prepared by the thematic committees are not available. Their release of the ward reports, the district reports, the provincial and national reports is essential.

Whole Process Marred by Lack of Openness and Transparency

Despite press releases saying “the constitution-making process being spearheaded by COPAC is a transparent process and we are accountable to the people of Zimbabwe in ensuring that the work is done properly”, and similar assurances given in public statements by COPAC co-chairpersons, COPAC has been unduly secretive about much of the process, particularly in recent months. Much information that should have been released as a matter of routine was not made public. Veritas’ constant efforts to obtain it from COPAC have been unsuccessful despite repeated promises since July. Media reports of interviews with COPAC co-chairpersons, sometimes disagreeing with or contradicting each other and often making wildly over-optimistic claims and predictions about progress, have not been a satisfactory substitute for officially released straight factual information.

As a result of official secrecy the public and civil society have remained largely ignorant about certain important aspects of the process:

Names of those involved in making our Constitution

The names of the members of the House of Assembly and Senators who are members of COPAC were made public when they were appointed in April 2009. The names of the leaders, members and rapporteurs of the outreach teams were published in the press ahead of the outreach process in 2010. But after this COPAC failed to release the names of those involved in the subsequent stages of the constitution-making process. This should be remedied and COPAC should release lists of :

the names of the team leaders/co-chairs, team members, rapporteurs and researchers/expert advisers of the original May 2011 thematic committees that produced the ward reports and an explanation of why the leadership structure of these thematic committees differed from that originally proposed in 2009, which envisaged each thematic committee having a deputy chairperson from civil society [distinguished experts in relevant fields had been earmarked as deputy chairpersons in 2009 but were dropped from the teams eventually assembled in 2011]

the names of the team leaders/co-chairs, team members, rapporteurs and researchers/expert advisers of the reconstituted/downsized August 2011 thematic committees that produced the district and provincial reports

the names of the persons involved in the audit of the district and provincial reports

the names of the persons involved in preparing the national report.

the names of the members of the drafting committee [only the names of the three lead drafters have been officially released]

All of these should have been made promptly available to maintain confidence in the process:

Reports from the various stages of the process

Reports that should be made public are:

ward reports [as there should have been 1857 such reports, at lease a random sample should have been released]

district reports

provincial reports

the national report.

Prompt provision of such information might have gone some way towards counteracting the widespread public cynicism about the process and rumours of tampering with data and nepotism and cronyism in the selection of the thematic committees, the persons appointed to assist the committees, and subsequent special task teams. In these times of financial stringency there should also have been transparency about financial rewards for participants, a subject which has generated much discussion about COPAC extravagance and squandering of government and donor funds.

Veritas makes every effort to ensure reliable information, but cannot take legal responsibility for information supplied